The Power and the Law –Conte

Around 1200, the lawyers were looking for a balance between the two author­ities: the one of the law­makers and the one of the existing law. As it was usual for medieval science, they ordered argu­ments in dialec­tical oppo­sition, to back both, the authority of the “dead voice” of the law and the one of the living lawmaker.

The first major witness of this effort was a rather obscure Italian judge from Lucca, named Rolandus. He was not known to the classic legal his­to­ri­og­raphy because he never taught at Bologna, not he wrote any gloss. But he com­piled the first com­plete summa to the Tres Libri, the books 10–12 of Justinian’s Code, which are mainly devoted to public law. The work is offered to the Emperor Henry VI, the son of Bar­barossa, who became also king of Sicily in 1194, but died shortly after. Here, Rolandus offers a picture of a very bal­anced rela­tionship between the ruler and the law. His vision is foun­da­tional for our under­standing of a “medieval con­sti­tu­tion­alism”, based on a “the rule of law” avant la lettre. It defines the emperor as a member of the legal order which must use its power in accor­dance with the laws. For example, the emperor should not impose unrea­sonable taxes, and cit­izens have the right to resist the unjust demands of the tax col­lectors. He may not seize the property of his sub­jects without just cause and without com­pen­sation. In short, he must be first and foremost the defender of the law.

This effort of bal­ancing power and law was pos­sible thanks to a fun­da­mental prin­ciple of the medieval con­sti­tu­tion­alism:  the con­ti­nuity between the Roman Empire and the medieval empire, which jus­tified the adoption of the Roman law in medieval Europe. The idea that the medieval Empire assumed Justinian’s law as its reg­u­latory system has been the focus of two tra­di­tional and opposite inter­pre­ta­tions.  On the one hand, the classic inter­pre­tation of Gibbon saw in Justinian’s law a pow­erful weapon of oppression of peoples who were arti­fi­cially sub­jected to a despotic law imposed from above. Many his­to­rians have fol­lowed this inter­pre­tation until today, but other scholars have con­sidered that the adoption of the Roman law by the Empire was a major boost to the legal civ­i­lization of medieval Europe.

The seminar is aimed at showing that the recovery of the ancient texts of the Roman law have not been a purely cul­tural hap­pening but have played a sub­stantial role in the his­torical inter­course. At the age of scholas­ticism, the author­i­tative sources were pow­erful political weapons. They were used dialec­ti­cally, to attack and to defend: as pow­erful opposite boosts, they allowed the con­struction of a vast knowledge aimed at “ordering the world”. Erwin Panofsky has mas­ter­fully drawn the par­al­lelism between this abstract con­struction and the very real con­struction of the gothic cathe­drals. That is why every his­torian should con­sider the real presence and the trans­for­mative force of the scholastic doc­trines while dealing with the late Middle Ages and the Early Modern.

As gothic archi­tecture, also medieval scholas­ticism had an his­torical exis­tence. This seminar is an attempt to show that we better do not con­sider it as pure the­o­logical or legal spec­u­lation, because it played a very effective part in the con­crete his­torical happenings.